Lozano-Zuniga v. Lynch

• Decision Date: 12 August 2016
• Docket Number: No. 15-2488,15-2488
• Citation: 832 F.3d 822
• Parties: Ismael Lozano–Zuniga, Petitioner, v. Loretta E. Lynch, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

832 F.3d 822

Ismael Lozano–Zuniga, Petitioner,

v.Loretta E. Lynch, Attorney General of the United States, Respondent.

No. 15-2488

United States Court of Appeals, Seventh Circuit.

Argued February 19, 2016

Decided August 12, 2016

David K. Ziemer, Attorney, Glendale, WI, for Petitioner.

Linda Y. Cheng, Jamie M. Dowd, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Manion and Rovner, Circuit Judges and Blakey, District Judge.^*

Rovner

, Circuit Judge.

Ismael Lozano–Zuniga is a native and citizen of Mexico. He arrived in the United States in April 2002, when he was fourteen years old, but was not admitted or paroled by an immigration officer. Lozano–Zuniga came to the attention of the Department of Homeland Security (Department) after an arrest and conviction for driving under the influence, and on September 17, 2010, the Department issued a notice to appear, charging Lozano–Zuniga with removability pursuant to INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i)

, for having entered the country without being admitted or paroled.

I.

At the initial hearing in front of the immigration judge, Lozano–Zuniga conceded the charge of removability, but filed an application for withholding of removal and protection under the Convention Against Torture (CAT).

At his March 2012 hearing, Zuniga testified that he came to the United States from Rio Grande, Zacatecas, Mexico in 2004 with his mother and sister to join his father and two older brothers. He also testified that prior to leaving Mexico, his mother received a telephone call asking for information about family members in the United States, in which the caller implied that he wanted money and would kidnap Lozano–Zuniga or his sister in order to get ransom money from relatives living in the United States. His mother did not report the incident to the police. She did not come to court to testify about the phone call or submit an affidavit. When asked about this by the immigration judge, Lozano–Zuniga responded that his mother is in this country illegally and feared coming to the immigration court. He noted that he thought the letter he submitted from a member of the Seventh Day Adventist church in Mexico, stating that members were subject to physical and verbal abuse, would suffice in lieu of her testimony.

Lozano–Zuniga also testified that he fears that if he should return to Mexico, he would be targeted as a young Mexican male returning from the United States and forced to work for the Mexican gang, the Zetas, as part of their violent drug trafficking operations. Lozano–Zuniga testified that the Zetas control everything, that many police members and other authorities have been corrupted by them, and that their ranks and presence has swollen since he left in 2004. Lozano–Zuniga admitted that he had never been personally threatened by the Zetas, and that his grandmother lives without incident in his city of origin (Lozano–Zuniga testified that the Zetas are not interested in older women), but he claims that if he returned to his small hometown, his return would be obvious and he would stick out as a target for the Zetas who would force him into criminal service.

While living in Mexico, Lozano–Zuniga testified, people criticized his Seventh Day Adventist religion and he believed the situation was getting much worse. According to his testimony, approximately two years before his hearing, a couple of members of the Seventh Day Adventist church had been killed. When asked by the immigration judge who killed them, he said “the only group localized in our area there is the group of the Zetas. So in my opinion, they are the ones responsible.” (R. 130).

Lozano–Zuniga has graduated from high school in the United States and is taking college courses in medicine. He continues his practice as a Seventh Day Adventist.

On November 21, 2013, in a thorough opinion, the Immigration Judge found Lozano–Zuniga to be generally credible, but found that he did not establish a clear probability that he would face persecution or torture upon his removal to Mexico. Lozano–Zuniga appealed to the Board of Immigration Appeals (Board) who confirmed the decision of the immigration judge. Lozano–Zuniga filed a timely petition for review.

II.

“When the Board agrees with the decision of the immigration judge, adopts that decision and supplements that decision with its own reasoning, as it did here, we review the immigration judge's decision as supplemented by the Board.” Cece v. Holder , 733 F.3d 662, 675 (7th Cir. 2013)

(en banc). We review the findings of fact for substantial evidence and reverse only if the evidence compels a different result. Id. at 675–76. We review questions of law de novo, deferring to the Board's reasonable interpretation set forth in precedential opinions interpreting the statute. Id. at 668 (citing Chevron, U.S.A., Inc. v. Natural Resources Def. Council, Inc. , 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 ). The Court will affirm the agency decision as long as it is supported by reasonable, substantial, and probative evidence. Aparicio–Brito v. Lynch , 824 F.3d 674, 685 (7th Cir.2016). The standard is extremely deferential and this court will not reverse simply because we would have decided the case differently, but rather only if the facts compel the opposite conclusion. Tawuo v. Lynch , 799 F.3d 725, 727 (7th Cir. 2015).

A.

We begin with a review of the immigration court's and Board's decisions on withholding of removal. A request for withholding of removal seeks relief under the Immigration and Nationality Act, “which prohibits the removal of a person to a country where his ‘life or freedom would be threatened ... because of [his] race, religion, nationality, membership in a particular social group, or political opinion.’ ” 8 U.S.C. § 1231(b)(3)(A)

; Duarte–Salagosa v. Holder, 775 F.3d 841, 845 (7th Cir. 2014). To demonstrate eligibility for this relief, Lozano–Zuniga must establish a clear probability that his life or freedom will be threatened upon his return to his country. Dominguez–Pulido v. Lynch , 821 F.3d 837, 845 (7th Cir. 2016)

. A clear probability means it appears more likely than not that he will suffer persecution if removed. Musa v. Lynch , 813 F.3d 1019, 1023 (7th Cir. 2016).

Ordinarily a court begins by looking to see if a petitioner has demonstrated that he has suffered from past persecution. Zeqiri v. Mukasey , 529 F.3d 364, 370 (7th Cir. 2008)

. With such a finding, the immigration judge can form a rebuttable presumption that the immigrant has a reasonable fear of future persecution. Id. But without it, the court must go on to assess whether the petitioner has a reasonable fear of future persecution. Toure v. Holder , 624 F.3d 422, 428 (7th Cir. 2010). In this case, Lozano–Zuniga concedes that he does not challenge the agency's finding that he did not demonstrate past persecution. (Petitioner's reply brief at 1). And rightly so, as one threatening phone call placed to his mother ten years prior, and vague criticisms of his religion do not suffice to establish past persecution.

Consequently, we look to see if the immigration judge and Board properly determined that Lozano–Zuniga failed to meet his burden of demonstrating a clear probability of future persecution “because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A)

. Lozano–Zuniga makes two claims in his petition. First that he would be subject to persecution as a young man recently removed from the United States with family members still in the United States (who thus might be perceived to have a source of money). See Decision of the Board at 2 (R. 3). Second, that he would be persecuted as a practicing Seventh Day Adventist in a country in which such practitioners are in a small minority. Lozano–Zuniga describes this latter category in his briefs as a “social group.” See Petitioner's brief at 5; Petitioner's reply brief at 1. It is not. It is a religion. And indeed these distinctions have been blurred in the proceedings below. Although it does not matter in terms of the burdens or tests the immigration courts or this court applies, it does matter in regards to one threshold issue. When a petitioner claims that he has been persecuted based on his membership in a social group, the adjudicating court must determine first whether the group constitutes a social group under the Immigration and Nationality Act, and second whether there is a nexus between the persecution and the membership in the social group. Cece , 733 F.3d at 668, 673. This circuit defines social group as a group “whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change.” Cece , 733 F.3d at 669. There is no parallel definition of religion. Therefore, when assessing persecution based on religion, we do not put the legitimacy of religion under a microscope in quite the same way. See

Cosa v. Mukasey , 543 F.3d 1066, 1069 (9th Cir. 2008) (“That Millenism may be an obscure, non-mainstream religion is no basis to discount a believer's faith”); Jiang v. Gonzales , 485 F.3d 992, 995 (7th Cir. 2007) (emphasizing that immigration judges may not rely on personal beliefs and perceived common knowledge about religion); Fessehaye v. Gonzales , 414 F.3d 746, 756 (7th Cir. 2005) (cautioning the Board that it may not require more evidence of conversion to a claimed religion than reasonably can be expected).

We begin then with Lozano–Zuniga's claim that there is a clear probability that his life or freedom would be threatened in the future upon his return to Mexico because of his membership in the social group of young men returning to Mexico after living in the United States. The Board stated that “[t]he respondent's expressed fear that he will be harmed by members of a criminal gang in Mexico,...